The rules guiding the Auslandbehörde

Question

I came to Germany in May 2017. Applied for asylum on 1st June 2017. At the course of my asylum process, I started Ausbildung in 2019 . Both the rejection of my asylum and the appeal was brought to an end in 2022. I was handed over a Duldung from march 2022 till January 2023. At graduating from my Ausbildung, I got a resident permit under section 25b. And on July 2023, I applied for a Niederlassungserlaubnis but the Auslandbehörde declined it and sent me an email, stating that I haven't fulfilled the 5 years rules since the period of the Duldung was excluded from the calculation. And then told me specifically, that I will stand a chance to apply for a Niederlassungserlaubnis on December 29th 2023. So on November 2023, I moved to another city because I got a better job there. I registered in the new city, and lived till October 2024. Since my resident permit will be expiring by January 28th 2025, I then applied for a Niederlassungserlaubnis with the new city that I moved into in 2023. The Auslandbehörde responded and asked me to provide them with three other vital documents which I did. They later sent me a fictionalbescheidigung. Two weeks thereafter, I received an email from them as well, telling me that I haven't fulfilled the three years rule of holding a resident permit. But their decision counters the decision of the city that I was living before, which stated that I will be due for a Niederlassungserlaubnis on 29th December 2023. I printed the email and sent it to the Auslandbehörde in my current city but they are trying to silent it. They make me to understand that there is a court ruling that said, " granting of a Niederlassungserlaubnis is under the discretional power of Auslandbehörde. They told me that I will be entitled to apply for a Niederlassungserlaubnis in January 2026. My question now is, does every Auslandbehörde in Germany have different laws and ways of handling residence permit? And had it been that the Auslandbehörde in my former city had decided that I should leave Germany, would the Auslandbehörde in my present city handled such decision differently? Wouldn't they have respected such decision? Why are they treating this issue differently now that it's in my favour? . Please is there a law that regulates the activities of Auslandbehörde in Germany, or do they just do whatever they wish , playing with the emotions of people?

Answer 1

Hi @Freetown

Any Ausländerbehörde has discretion on whether to issue a Niederlassungsleruabnis to a person with 25b. This is different, for example, to people who have full refugee recognition from BAMF. Such people have a full entitlement to be issued with one after a certain period of time.

The rule concerning your situation is in paragraph 26, section 4 of the Aufenthaltsgesetz, here in English via online translation:

(4) Furthermore, a foreigner who holds a residence permit under this section may be granted a settlement permit if the conditions set out in Section 9 (2) sentence 1 are met. Section 9 (2) sentences 2 to 6 apply accordingly. In derogation from Section 55 (3) of the Asylum Act, the period of residence during the asylum procedure preceding the granting of the residence permit shall be counted towards the time limit.

The main court ruling I could find about such cases was a decision by the federal administrative court (Bundesverwaltungsgericht) from 2011. It contains two main points:

1. The time spent in the asylum procedure should be included when calculating the required time for a Niederlassungserlaubnis, even if there was a negative decision and the person was in possession of a Duldung for some time.
2. The Ausländerbehörde can require the person to have had a residence permit for a certain amount of time when calculating the time periods.

The second point is to prevent a situation where a person could have been in the asylum procedure for 4.5 years, then on a Duldung, then issued with a permit where they can then after 6 months get a Niederlassungslerlaubnis. A specific amount of time is not mentioned but the court makes reference to the guidelines for the Ausländerbehörde in Berlin that states the person must have had a permit for at least three years. I assume the second Ausländerbehörde you applied to is basing its decision on this.

The immigration law (Aufenthaltsgesetz) is the same through Germany. How the law is implemented can vary to a certain degree from one federal state to another, due to guidelines that each state can produce.

I do not fully understand this part of your question:

And had it been that the Auslandbehörde in my former city had decided that I should leave Germany, would the Auslandbehörde in my present city handled such decision differently? Wouldn't they have respected such decision?

In some matters each Ausländerbehörde is obliged to decide a certain way, in other matters there is discretion available to them on how to decide on a particular matter.

The law that regulates the Ausländerbehörde and other government institutions is called Verwaltungsrecht (administrative law). This means a person can file a legal suit called a Klage with the Verwaltungsgericht if they have unsuccessfully appealed a decision of the Ausländerbehörde and wish to pursue it further.

Best,

Éanna

Comments

Thank you dear @mbeon-Éanna for these very important information and good explanation. That’s indeed interesting and will be appreciated by many readers! Best, Meike

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You're welcome!